JOHN C. EMOLO v. HON. FREDERIC R. MCDANIEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0974-08T10974-08T1

JOHN C. EMOLO and GAIL BRAUN

EMOLO, his wife,

Plaintiffs-Appellants,

v.

HON. FREDERIC R. MCDANIEL,

Individually and in his Official

Capacity as Judge of the Superior

Court; HON. STUART RABNER and HON.

DEBORAH PORITZ, Both Individually and

in their Official Capacities as Chief

Justice of the Supreme Court of New

Jersey, HON. PHILIP CARCHMAN,

Individually and in his Official

Capacity as Administrative Director

of the Courts of the State of New

Jersey, TRACEY DEGROOT, RICHARD

CACIOPPO, IRVING PALTROWITZ, M.D.,

Defendants,

and

RONALD M. ABRAMSON, ESQ.,

JACK S. ZAKIM, ROBERT J. KLEEBLATT,

ESQ., RICHARD P. GALLER, ESQ., IAN

S. KLEEBLATT, ESQ., THOMAS MCCONNELL,

ESQ., Individually and jointly

and severally as members of

KLEEBLATT, GALLER, ABRAMSON &

ZAKIM, L.L.C. and KLEEBLATT,

GALLER & ABRAMSON, L.L.C.,

Defendants-Respondents.

_______________________________________

 

Submitted: May 28, 2009 - Decided:

Before Judges Axelrad, Parrillo and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3645-08.

Emolo & Collini, attorneys for appellants (Joseph E. Collini, on the brief).

Schiffman, Abraham, Kaufman & Ritter, P.C., attorneys for respondents (Robert L. Ritter and Daniel S. Eichhorn, on the brief).

PER CURIAM

Plaintiffs John Emolo and his wife appeal from summary judgment dismissal of their complaint with prejudice alleging abuse of process stemming from post-divorce proceedings involving Emolo's former wife, defendant Tracey DeGroot. We affirm.

On January l7, 1996, Emolo and DeGroot were divorced and the parties' property settlement agreement (PSA) was incorporated as part of the final judgment of divorce (FJD). On or about September 21, 2004, DeGroot, represented by defendant Ronald Abramson of the firm defendant, Kleebatt, Galler, Abramson & Zakim, LLC (collectively Abramson), filed a post-judgment motion to modify the original alimony award, terminate her child support obligation and hold a plenary hearing on the issue of modification and counsel fees. Emolo filed a cross-motion. Judge Frederic McDaniel entered an order of November 5, 2004, which among other relief, directed a plenary hearing on whether there was a prima facie case of changed circumstances for alimony modification.

The plenary hearing commenced in July 2005 and continued into 2007. On February 26, 2007, Emolo filed a complaint in the United States District Court for the District of New Jersey, seeking to enjoin Judge McDaniel from continuing to preside over the plenary hearing and alleging violations of Emolo's civil rights and rights of due process and equal protection. According to the complaint, DeGroot and Abramson were committing a fraud on the court by, among other things, misrepresenting a medical disability DeGroot claimed rendered her unable to work and misleading the court concerning large sums of money DeGroot had received from two former paramours that the court would then use to calculate Emolo's modified alimony payments. Emolo also claimed that Judge McDaniel had failed to address the perjured, contradicted testimony of DeGroot and her witnesses, and violated Emolo's right of due process by barring him from cross-examining DeGroot's witness, Dr. Amy Green, on her alleged acts of insurance fraud, and by failing to rule on motions for relief during the proceeding. After several amendments, including adding Ronald Abramson as a defendant, the federal court dismissed Emolo's complaint on January 30, 2008, and denied reconsideration on April 15, 2008.

The plenary hearing concluded in state court in April 2007. On April l0, 2008, Judge McDaniel issued a lengthy written opinion detailing the law on changed circumstances, anti-Lepis clauses and cohabitation as these issues pertained to spousal support, summarizing the witnesses' testimony and making credibility assessments in favor of DeGroot. Pertinent to this appeal, the court concluded that sufficient evidence existed supporting DeGroot's inability to currently work and that she was not cohabiting with another or receiving money from others establishing sufficient income to support her. The court also expressly rejected Emolo's claims of fraud and criminal wrongdoing on the part of DeGroot, her witnesses and her counsel, stating:

While [Emolo] has consistently accused [DeGroot], her witnesses and her counsel of conspiring to commit fraud based upon their testimony, I find no proof that such fraud exists. [Emolo] made accusations frequently during the hearing in an effort to convince the Court that [DeGroot] and others were not credible. This included accusing [DeGroot] of perjury when she denied saying certain things to Dr. Peter Crain [the court- appointed psychiatrist].

[Emolo's] proposed "Statement of Facts" alleges that [DeGroot] "initiated this proceeding based upon . . . fraudulent claims. . . [.]" He asserts that [DeGroot's] claim that she is medically disabled and unable to work was manufactured . . . .

. . . He claims that Richard Cacioppo [DeGroot's alleged former boyfriend] committed fraud when he testified that he loaned [DeGroot] money and that certain contradictions in [DeGroot's] and Mr. Cacioppo's testimony, when compared to numerous prior certifications, prove such fraud. This Court finds nothing by way of [Emolo's] counsel's assertions and suggested examples to establish any fraud.

A great deal of [Emolo's] arguments in support of a finding that [DeGroot] and her witnesses were not credible, are overblown and melodramatic accusations without much substance. There are numerous examples of embellishment and mischaracterizations designed to paint a picture of [DeGroot], her psychiatrist, her friend and her lawyer as criminals. . . .

[Emphasis added.]

In contrast, the court found that Emolo "engaged in a pattern of conduct against [DeGroot] which can be characterized as being in bad faith" and awarded DeGroot partial counsel fees. An order memorializing the court's decision was entered on June 27, 2008.

On May l4, 2008, Emolo and his current spouse filed the subject order to show cause and verified complaint in the Law Division, seeking preliminary injunctive relief barring Judge McDaniel from entering a judgment in the matrimonial action. The complaint also included as defendants DeGroot, Abramson, and DeGroot's alleged former boyfriends, Cacioppo and Dr. Irving Paltrowitz. The first and second counts assert federal and state due process and equal protection claims against Judge McDaniel; the third count asserts claims against the Chief Justices and Judge Carchman; the fourth count alleges that the false statements and testimony, as well as DeGroot's and Abramson's bad faith institution of proceedings and motions, violated Emolo's rights under the New Jersey Civil Rights Act; the fifth count alleges that DeGroot's and Abramson's September 23, 2004 motion to modify the FJD constituted an abuse of process involving a conspiracy with Cacioppo and Paltrowitz based on fraud on the court; and the sixth count contains a loss of consortium claim.

On May l9, 2008, Judge Robert C. Wilson denied the order to show cause with temporary restraints as "patently unsupportable based on [plaintiffs'] Verified Complaint and Certification." Cacioppo filed an answer and third party complaint. He was thereafter appointed DeGroot's guardian ad litem on his application and filed a motion on her behalf to dismiss the complaint with prejudice. Abramson also filed a motion to dismiss. Plaintiffs filed a motion seeking to amend the complaint to add Dr. Amy Green as an additional defendant, to assert "ongoing abuse of process" claims, and to clarify the alleged "constitutional violations" as "abuse of process" allegations.

Following oral argument on August l5, 2008, Judge Wilson dismissed plaintiffs' complaint in its entirety for failing to state a claim upon which relief can be granted, R. 4:6-2(e). The court stated:

The complaint is a long historical diatribe of the plaintiff's Family Law case with post matrimonial proceedings before the Honorable Frederic[] McDaniel. None of the proceedings and history supports a basis for the cause of actions alleged.

The case has previously been brought and thrown out in the United States District Court for the District of New Jersey . . . . The Court also finds that along with the U.S. District Court action the subject matter involved actions filed in the Union County Law Division and under the post matrimonial Family proceedings in this case. Therefore, the Bergen County Law Division is just the latest court the parties have tried to introduce these causes of actions after being dismissed previously.

Those actions are otherwise barred as res judicata. The further attempt to distinguish those cases from this one is mere subterfuge, as they all arise under the same factual transaction and should have been joined under the Entire Controversy Doctrine and those dismissed actions. . . .

The court further found Abramson was protected by the litigation privilege, and that the civil rights actions were not appropriate due to a lack of State action. An order dismissing plaintiffs' complaint was entered on the same date. By order of September 26, 2008, the court denied plaintiffs' motion for reconsideration. This appeal ensued.

On appeal, plaintiffs argue the trial court erred in dismissing their complaint for failing to plead a cause of action for abuse of process, R. 4:6-2(e), contending the court did not consider controlling law defining "fraud on the court" or properly apply the facts of the case to the complaint. They also contend that dismissal based on the litigation privilege was not warranted as the privilege does not protect a litigant or attorney from liability for malicious prosecution. Finally, plaintiffs argue the court improperly addressed the issue of res judicata, which was not raised in DeGroot's motion and created an appearance of bias, and further erred as a matter of law in finding the complaint was barred by this doctrine, as well as by the entire controversy doctrine. Based on the applicable law and our review of the record, we reject plaintiffs' arguments as without merit.

When reviewing a complaint upon a motion to dismiss for failure to state a claim upon which relief can be granted, R. 4:6-2(e), all well-pleaded factual allegations are regarded as true, and the court will resolve the matter on the pleadings themselves. Holmin v. TRW, Inc., 330 N.J. Super. 30, 32 (App. Div. 2000), aff'd, 167 N.J. 205 (2001). The court must evaluate the complaint in light of the legal sufficiency of the facts alleged in the complaint, without concern for the plaintiff's ability to prove the alleged facts. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989).

Our review of a motion to dismiss for failure to state a cause of action is governed by the same standard as that applied by the trial court. Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002). We therefore consider, and accept as true, the facts alleged in the complaint to ascertain whether they set forth a claim for abuse of process against which relief can be granted. We are satisfied they do not.

An action for malicious use of process or malicious prosecution is based on commencing an action without justification. Baglini v. Lauletta, 338 N.J. Super. 282, 293 (App. Div.), certif. denied, 169 N.J. 608 (2001). In contrast, the gist of the tort of malicious abuse of process "is the unlawful use of a lawful process after its issuance." Earl v. Winne, 34 N.J. Super. 605, 614 (Law Div. 1955). In substance, malicious use requires only "the employment of process for its ostensible purpose, although without reasonable or probable cause, whereas the malicious abuse is the employment of a process in a manner not contemplated by law." Baglini, supra, 338 N.J. Super. at 293-94 (quoting Ash v. Cohn, 119 N.J.L. 54, 58 (E. & A. 1937)); see also Hoffman v. AsSeenOnTV.com, Inc., 404 N.J. Super. 415, 431 (App. Div. 2009) (the tort of malicious abuse of process "lies not for commencing an improper action, but for misusing or misapplying process after it is issued.").

A party bringing an action for malicious abuse of process must prove:

(1) that defendant made an illegal, improper, perverted use of the process, a use neither warranted nor authorized by the process; and (2) that defendant had an ulterior motive in exercising such illegal, perverted or improper use of the process.

[Earl, supra, 34 N.J. Super. at 614.]

An ulterior motive is not in and of itself sufficient; it must be used outside the scope of the process to be considered improper. Ibid. Regular and legitimate use of process with bad intentions is likewise not malicious abuse of process. Ibid.

The process has not been abused unless "after its issuance the defendant reveals an ulterior purpose he had in securing it by committing 'further acts' whereby he demonstrably uses the process as a means to coerce or oppress the plaintiff." Tedards v. Auty, 232 N.J. Super. 541, 550 (App. Div. 1989). Where the issue is disputed regarding whether a defendant's further acts were maliciously intended to oppress or coerce, a plaintiff may demonstrate "that the defendant had secured issuance of the process without reason or probable cause as evidence that his ultimate intent was to use it for a purpose ulterior to the one for which it was designed." Ibid.

We employed this test in Tedards, reversing summary judgment in the defendant's favor where the plaintiff alleged abuse of process by the defendant-attorney who represented the plaintiff's former wife in post-judgment enforcement proceedings and obtained an ex parte writ resulting in the plaintiff's incarceration. Id. at 543-44. The "further acts" of the defendant after issuance of the writ were his knowing and material misrepresentations to the judge of the record of the family action to justify setting bail in the amount of the wife's demands and his use of the threat of reincarceration under the writ as a means of extorting a settlement. Id. at 551. We concluded that such further acts, viewed indulgently as evidence presented by the non-moving party, would establish abuse of process. Ibid. We also noted that the trial court could have considered the plaintiff's "circumstantially detailed statements" in her certification as to the defendant's malicious acts, which he did not deny, to give character to the evidence of the defendant's "further acts." Ibid.

Here, plaintiffs rely on the Tedards ruling in support of their position, first contending that Abramson abused process by filing the motion to modify more than eight years after the FJD, and by stating Abramson then omitted key facts from DeGroot's pleadings and submitted misleading statements about her present health, making it appear she was unable to work, which the trial court relied on to terminate child support. Plaintiffs argue that DeGroot's attorney's "further acts" are demonstrated by his failure to meet his ethical obligation to advise Emolo that DeGroot could not meet her burden of proving "changed circumstances" at the plenary hearing. Plaintiffs further contend that Abramson's use of Dr. Green as an expert witness to testify as to DeGroot's medical condition at the plenary hearing also constituted "further acts" since he was aware that DeGroot's medical condition pre-existed the FJD and could not therefore constitute changed circumstances. Additionally, plaintiffs contend Abramson's further acts are demonstrated by his knowingly providing false interrogatory answers in an attempt to conceal the existence and identity of a material witness, Paltrowitz, thereby obstructing the administration of law in a court proceeding. Thus, according to plaintiffs, by committing these acts, Abramson committed a "fraud on the court" equating to abuse of process.

Plaintiff's allegations do not establish a cause of action for the tort of malicious abuse of process. Abramson used the motion process in the way it was intended. For example, as our Supreme Court held in Crews v. Crews, 164 N.J. 11 (2000), and Lepis v. Lepis, 83 N.J. 139 (1980), a spouse may seek modification of an alimony award if he or she can prove a change in circumstances. Abramson filed the post-judgment motion based on DeGroot's assertions that she was misled into signing the initial PSA by her former counsel, that Emolo had concealed his financial earnings and that she was unable to maintain employment due to health problems. Therefore, Abramson was not making an illegal, improper or perverted use of process, but rather was filing an appropriate motion as directed by our Supreme Court to attempt to establish a change of circumstances to modify the alimony set forth in the FJD.

Nor can plaintiffs establish that Abramson misused or misapplied the process after it was issued. They may point to discrepancies between DeGroot's interrogatory answers and her trial testimony or continue to question the timing and validity of DeGroot's medical condition and her inability to work as evidence of "bad acts." These points may properly be the subject of impeachment at trial for purposes of challenging credibility, see N.J.R.E. 607, but such allegations do not establish the "ulterior motive" requirement for a valid claim of abuse of process. This is a far cry from the situation in Tedards where the plaintiff's allegations of malicious "further acts," which tended to reveal an ulterior purpose for securing process, namely to oppress the plaintiff or coerce him to settle, went undisputed. DeGroot provided an extensive certification in support of her motion to modify alimony and terminate child support. The Family Part judge found she presented sufficient evidence to merit a plenary hearing. The plenary hearing took place over twenty-three days, during which Emolo presented extensive evidence and cross-examined DeGroot and her witnesses on the same issues raised in his abuse of process complaint. Judge McDaniel expressly credited the testimony of DeGroot and her witnesses, rejected Emolo's claims that form the basis of his claims of "further acts" and found instead that Emolo acted in bad faith and with ulterior motives. After the lengthy trial, the court found many of DeGroot's claims meritorious and she ultimately received most of the relief she requested. Thus, plaintiffs cannot demonstrate on this record that DeGroot secured issuance of the process without "reason or probable cause." See Tedards, supra, 232 N.J. Super. at 550. Accordingly, as a matter of law plaintiffs cannot sustain their claim for the tort of abuse of process.

We are also satisfied that plaintiffs are collaterally estopped from proceeding with their abuse of process lawsuit, which is premised on allegations and innuendos previously asserted in both state and federal court and expressly found to be baseless by the Family Part judge.

The doctrine of collateral estoppel is "'that branch of the broader law of res judicata which bars relitigation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action.'" Sacharow v. Sacharow, 177 N.J. 62, 76 (2003) (citations omitted); see also State, Dep't of Law and Pub. Safety, Div. of Gaming Enforcement v. Gonzalez, 273 N.J. Super. 239, 254 (App. Div. 1994) (collateral estoppel bars a party from relitigating an issue that a court has previously adjudicated), aff'd, 142 N.J. 618 (1995). Application of the doctrine promotes finality and repose in litigation, prevents needless litigation and avoids the expense of duplication. Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 522 (2006).

Plaintiffs are collaterally estopped from relitigating the issues that Emolo unsuccessfully raised in his matrimonial litigation and has attempted to reframe in a different posture. The record supports the conclusion that the requisite five-prong test for issue preclusion has been met:

(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

[See id. at 521.]

Plaintiffs' claims against Abramson were also properly dismissed based on the litigation privilege, which "grants an absolute privilege to statements or communications made by attorneys in the course of judicial and quasi-judicial proceedings." Baglini, supra, 338 N.J. Super. at 297. To be privileged, the communication must: (1) be made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of litigation; and (4) have some connection or logical relation to the action. Loigman v. Twp. Comm. of Middletown, 185 N.J. 566, 585 (2006). The privilege is not limited to statements made at trial but extends to all statements or communications in connection with the judicial proceeding. Baglini, supra, 338 N.J. Super. at 297. Furthermore, we have expressly applied the litigation privilege to malicious abuse of process causes of action. Id. at 297-99.

In applying the privilege, a court does not consider the justness of the attorney's motives or the sincerity of his or her communications, and thus the privilege protects even negligent and unethical attorneys from civil judgments. Loigman, supra, 185 N.J. at 586-87. Courts consider the trade-off a "necessary price that must be paid for the proper functioning of our judicial system, a system that requires attorneys to vigorously and fearlessly represent their clients' interests." Id. at 587.

Plaintiffs' complaint alleges Abramson elicited false testimony from DeGroot, knowing it to be false, and the allegations contained in the motion to modify were likewise known to be false. The complaint also alleges Abramson and DeGroot conspired with Cacioppo and Paltrowitz to commit a fraud on the court by fabricating DeGroot's medical condition and concealing borrowed money DeGroot was receiving. In support, plaintiffs rely on interrogatory answers and DeGroot's testimony regarding her medical condition causing her to stop working, which they assert are contradicted by other facts and testimony adduced at trial. Plaintiffs also point to Abramson's motions to quash expert medical records as proof that he was aware that DeGroot's medical condition did not exist in an attempt to perpetuate a fraud on the court. Plaintiffs also contend the motions to quash were an attempt to conceal information regarding DeGroot's financial information from Paltrowitz, demonstrating Abramson knew of DeGroot's true source of funds but, nevertheless, litigated the matter. Furthermore, since testimony from the court-appointed expert, Dr. Crain, noted different amounts of money DeGroot had obtained than were stated in DeGroot's and Cacioppo's certifications, plaintiffs contend Abramson knowingly suborned perjury by submitting the certifications in the first place.

As is evident in the complaint, all of plaintiffs' allegations concern communications made in a judicial proceeding -- the post-judgment matrimonial action. Moreover, the communications were made by DeGroot and Cacioppo, litigants, as well as Abramson, all authorized by law as a client, witness and attorney to participate in the proceeding. The communications were further made to achieve the object of the proceeding, which was DeGroot's modification of the terms of the PSA, increase in alimony and elimination of child support. Finally, all of the communications concerned DeGroot's financial and medical status in an attempt to prove changed circumstances for purposes of alimony and child support modification, and were thus directly and logically related to the matrimonial litigation. As such, all elements of the litigation privilege have been met. See Loigman, supra, 185 N.J. at 585.

We summarily reject plaintiffs' claims of bias by Judge Wilson as unsupported by the record and without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

 
Affirmed.

The motion was filed by Judge McDaniel through the New Jersey Attorney General on June l4, 2007.

Lepis v. Lepis, 83 N.J. 139 (1980).

Emolo filed an appeal of this order, and the court's related orders of November 5, 2004, January l4, 2005, January 24, 2005, and February 20, 2009, Docket No. A-2746-08T3, which is pending.

The complaint also named as defendants Chief Justice Rabner, former Chief Justice Poritz and former Administrative Director of the Courts Judge Carchman, alleging they failed to take appropriate action against Judge McDaniel and violated Emolo's rights. The claims against these defendants were voluntarily dismissed at some point after dismissal of the order to show cause.

Cacioppo apparently practiced law in California. He also moved to set aside the default against DeGroot that Emolo had requested on July l6, 2008.

The court also restrained Cacioppo from acting as DeGroot's guardian in the future.

(continued)

(continued)

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A-0974-08T1

July 29, 2009